Beltran v. Astrue

On May 2, 2012, the Ninth Circuit decided Beltran v. Astrue.  Attorneys that handle Social Security disability cases consider the issue of signficant number of jobs (SNOJ) in the economy to constitute the Holy Grail.  Pursued and promised but never quite attained.  This case is a baby step closer to that Holy Grail. 

As the third attorney on the case, I had some reluctance to pursue the SNOJ issue.  This nuanced issue typically requires finesse and a perfect record.  The record had some traps but overall a tip in favor of pursuit.  The ALJ in the case denied Beltran disability insurance benefits as of her date last insured.  The ALJ reasoned that the ability to perform 135 jobs in a single sedentary occupation represented a large enough occupational base to expect the vocational adjustment.  The ALJ granted Beltran SSI benefits ... beginning 6 days after the expiration of her date last insured for SSDIB benefits. 

SSI carries with it a benefit tied to financial status of income and resources and grants the beneficiary Medi-Cal coverage.  Medi-Cal grants access to emergency rooms and public clinics and hospitals.  The private medical providers do not treat Medi-Cal recipients. 

SSDIB carries with it a benefit that does not depend on household income and resources and grants the beneficiary Medicare coverage after 2 years of pay status.  Medicare grants access to doctors and hospitials.  The private medical providers do treat Medicare recipients.  For Beltran, pursuing the case had real importance to her in terms of monthly benefit and access to medical care. 

The case did have a couple of problems.  Had I represented Beltran at the District Court level, I would have included a borderline age situation.  Lockwood v. Astrue had not been decided and that decision would have mired the presentation of Beltran to a crawl.  Serendipity saved me from pressing an issue that probably would have won at the District Court level but provided Beltran with no additional past due benefits.  What I perceived as an error turned out to bring good fortune to the case. 

And the real reason to blog about this case ... the strident dissent from Judge Ikuta.  In April, the Ninth Circuit issued a decision in Molina v. Astrue.  That decision broadened the use of the harmless error doctrine.  The author of that opinion, Judge Ikuta.  The majority opinion in Molina and the dissent in Beltran paints Judge Ikuta into the corner of apologist for bad decisions from the Social Security Administration.  Harmless error means that the ALJ decision contains error.  Excusing error as harmless and expanding the use of that doctrine means that the adadge "close enough for government work" continues to have vitality. 

Judge Ikuta complains that the Court usurps the perogative of the agency to make fact findings based on the slimmest of evidence.  Healthcare Employees Union v. NLRB rejected the "rational basis" test that the NLRB sought in review of agency decisions.  The Ninth Circuit, like all courts, reviews decisions of agencies on the record as a whole.  During the expansion of agency power in the last 80 years, the courts have never abdicated the role of making sure that any agency decision make sense.  In other words, the fact that there exists a rational discernable basis for a decision has never and should never rescue the decision from the probing eye of the court. 

In footnote 1 of the dissent, Judge Ikuta complains that alcohol abuse caused some of the problems and limitations found by the ALJ to afflict Beltran.  Judge Ikuta states that problems caused by a history of alcohol abuse don't count in the disability analysis.  First, the ALJ already backed out ethanol from the equation in finding Beltran eligible for benefits 6 days later.  Second, the statute and the regulations remove benefit eligibility if the disabling limitations would evaporate with abstinence.  The footnote represents a misstatement of law and fact. 

The statute requires that Beltran and other claimants for benefits have the capacity to perform a signficant number of jobs in the region in which they live or several regions of the country in light of the residucal capacity for work and in consideration of age, education, and work experience.  While it is true that employment practices and openings don't count, that truism pales when the statute requires consideration of age.  The Commissioner's regulations call this the ability to adjust to other work.  For someone aged 50 or over, the ability to perform every single unskilled sedentary job in the nation does not provide a significant enough occupational base.  For a person aged 55 or over, the ability to perform every single unskilled sedentary and light job in the nation does not provide a significant enough occupational base.  Beltran was 49 years, 11 months, and 3 weeks old at the time that her insured status expired.  The ALJ granted SSI benefits a week later and found that 1 occupation representing at most 135 jobs represented a signficant number.  That kind of sophist analysis deserves the searching scrutiny of the court to second guess the decisions of an ALJ.

Public confidence in a system of administrative adjudication demands better and the majority got it right in holding SSA's feet to the fire. 

Bassett v. Astrue

The Seventh Circuit Court of Appeals decided Bassett v. Astrue on May 27, 2011.  The facts are simple enough.  Bassett alleged that he was disabled in April 2005.  The Administrative Law Judge found that he became disabled in December 2007.  Losing 32 months of benefits translates for most disability recipients to around $30,000.  For someone that has lost the ability to engage in work, that is a healthy chunk of change.

The ALJ found that Bassett could perform "light" work in 2005 but by the end of 2007 he had gotten worse and could perform only "sedentary" work.  Bassett turned 55 in December 2007.  The ALJ picked Bassett's birthday as the date that his ability to perform work changed from light to sedentary.  Because Social Security disability considers age, Bassett wins at 55 whether he could perform light or sedentary other unskilled work, only.  If Bassett were under 55 and limited to sedentary unskilled work, he wins disability benefits.  The United States District Court for the Central District of Illinois decided that the ALJ had made a mistake in picking Bassett's 55th birthday as the date that he could no longer perform light work but was limited to sedentary work.  Bassett won the court case.  Implicit in the decision of the District Court is the decision that no reasonable person would have picked Bassett's birthday as the change date because substantial evidence did not support that date.  In an abrupt about face, the District Court found that the ALJ and the attorneys defending the ALJ decision were substantially justified in making that determination, denying Bassett the right to recover his attorney fees from the government for forcing him to take such a silly ALJ decision to court.

 For most garden variety cases, taking a case like this to the Court of Appeals is a waste of time.  The Equal Access to Justice Act, signed into law by President Reagan, permits people and organizations within financial boundaries to recover attorney fees when the government either brings an action or defends an action without "substantial justification."  It originally paid for attorney fees at $70 per hour plus an optional COLA.  The reimbursement or payment rate is now $125 per hour plus COLA.  The COLA brings the rate up to around $175 per hour.  So let's assume that an attorney is pretty good and worth $300 per hour in Central Illinois.  The cost of taking up an appeal to the Circuit costs either the attorney on a contingency fee basis (Social Security disability cases are required to be contingency fee by law) or the client paying hourly $125 per hour. Taking 60 hours to research, write, and organize such an appeal is cheap.  Taking the case up on appeal will cost $7000 minimum in uncompensated time.  In my experience, most District Court cases for EAJA purposes are worth less than $6000, the case was not worth taking up.  Every once in a while, attorneys need to make an exception and take one of these bad boys out of the pile and appeal.  That is a "loss leader."  I will entertain the doubt that this was an intentional foray into making a point rather than a good business decision for the client or the attorney.

Since I gave the attorney the benefit of the doubt, I will similarly give the ALJ and the attorneys defending the ALJ the benefit of the doubt.  I assume that the ALJ had good reasons for believing that Bassett could perform light work at 52 years of age and therefore not disabled.  I further assume that by the time that Bassett turned 55, the evidence was clear that he was limited to sedentary work and disabled.  Because there is no mention of trauma in the Court's decision, I finally assume that Bassett had a slow progression of his problems that ate away at his ability to exert himself during the 32 months.

Giving the ALJ and the government lawyers every benefit of the doubt, the decision violated agency policy and commonsense.  Social Security Ruling 83-20 tells the ALJ to consult a medical expert to establish the onset date of disability in cases just like this one.  By picking Bassett's birthday, the ALJ violated agency policy.  This is not an articulation problem, it is a violation of the way that SSA interprets the law.  The ALJ doesn't get to interpret the law; the Commissioner gets to interpret the law.  Because the ALJ violated the ruling, the Seventh Circuit encouraged reckless and wanton decision-making by ALJs that ignore agency interpretation of the statute and regulations.

The ALJ also violated commonsense.  Certainly a birthday can be emotionally challenging as time marches on and the warranty card on our bodies falls further out of date.  But to find that this is the date that Bassett fell off the physical ability cliff is silly.  It is like an ALJ picking the date that a doctor took an x-ray for a longstanding chronic condition as the date that disability began.  This is also the kind of case where the ALJ should have engaged in the Solomonic decision to cut the baby in half.  The closer that Bassett got to age 55, the more lenient the ALJ should have looked at the evidence because that is exactly what the statute, regulations, and policy demand the ALJ to do.  Finally, it is just plain a slap in the claimant's face to pick his birthday as the onset date of disability when the deterioration was ongoing.

An ALJ has an obligation to pay every dime of benefits owed.  An ALJ has an obligation to deny every dime of benefits not owed.  When an ALJ asks whether he/she can legally and reasonably pay benefits in cases, people like Bassett get reasonable and trustworthy decisions early.  When an ALJ asks for every angle to deny cases, we get shoddy decisions like the administrative decision in this case.  A dumb decision by the ALJ and a tragic mistake by the Courts not to tell the ALJ and the attorneys that defend those decisions in court that this kind of frivolous decisions will not only get sent back for a re-do but also find the government paying at least part of the attorney fees incurred to correct the egregious error.

Lockwood v. Astrue

My level of angst rose Friday and approaches crescendo this morning.  Under the Supreme Court's docketing procedures, Lockwood got distributed for conference on April 29, 2011.  The Court will post the order list this morning.  The order list for April 25 was 9 pages long of certiorari denied, habeas denied, mandamus denied, rehearing denied, attorney discipline, and a handful of orders in pending cases.  Most other order lists have 2 cases with certiorari granted.  Thousands of cases filed each year, less than 100 get granted and set for oral argument.  The Supremes have a pretty good idea of how many cases it wants to hear next hear and already has a calendar of oral argument days.

The advertised publication time is 10 AM Eastern Time. At 7:05 AM Pacific Time, I am still waiting.

There it is.  Certiorari denied.  Posted the news to my  brethren on a private list.  Truly disappointed for the simple reason that we should be able to trust that what the government says it means.  Maybe I am naive or yearn for a utopia that will never appear.  But when any agency clears away the haze of ambiguity of a regulation, we should demand the right to bank on it.  Litigation ensues when rights and results are unclear.  If we all know the result based on settled law, then litigation turns on factual disputes only.  When the law is not clear or when one side (the federal government) can run away from clarity, then the whole system fails.

It is an old adage for lawyers.  When the facts are one your side, argue the facts.  When the facts are not on your side, argue the law.  When the law is not on your side, confuse the issues.  I tip my hat to the lawyers that represent the Social Security Administration ... you certainly did confuse the issue on this one.

It isn't that there isn't blame to go around.  The lawyers for SSA blame the lawyers for the claimant for not raising the issue or not raising the issue properly.  Perhaps that is permissible in a truly adversarial position but the Social Security Act is different.  It is non adversarial.  Government lawyers are also different.  They have an obligation not only to a particular case but to the public at large.

More on this topic in the months to come.

Pending at the Supreme Court

Lockwood v. Astrue is currently pending before the Supreme Court.  Your erstwhile writer acts the attorney of record.  Lockwood concerns application of the borderline age case for an individual about 1 month from turning 55 but the Administrative Law Judge treats her as 54.  The regulations promise that the ALJ won't do that.  The program operations manual tells SSA to explain why it did or didn't take a flexible approach to age.  At issue is whether the Social Security Administration can promise the public one thing in a policy and procedure manual and then run away from that promise in federal court.

It is the social contract theory in administrative law.  The Supreme Court changed the paradigm in Chevron.  Regulations, not the Courts, get first crack at refining an ambiguous statute.  Auer extends that doctrine.  The agency gets the first crack at refining an ambiguous regulation.  But the Social Security Administration want to defend ALJ decisions in Court more than it wants to defend the right of every federal agency to promulgate regulations and then tell the world what those regulations mean.

Just to make it interesting, the Acting Solicitor General declined to tell the Supreme Court what the executive branch of government thinks about Auer deference.  The SG didn't do that in Parra v. Astrue, when the government told the Supremes that the Ninth had the whole deference thing wrong.